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Legislative Assembly for the ACT: 2001 Week 5 Hansard (1 May) . . Page.. 1278 ..

MR STANHOPE (continuing):

We assume-and I think we are entitled to assume, and I am sure it is the case-that the Director of Public Prosecutions and the police argue strongly and strenuously before the courts against granting bail. But, to the extent that bail is granted, one is led to the conclusion that the arguments of the DPP and the police are not always as persuasive as they think they should be.

Given the court's power under the Bail Act to refuse bail and the High Court's view that the refusal of bail is not seen by the law as punitive, we can only surmise that the DPP and the police have not been able to carry their arguments before the magistrates and the judges in relation to the desirability of refusing bail in certain circumstances.

I should, I guess, highlight the fact that I am dealing in this debate with the Labor Party's concerns about this legislation, albeit, as I have indicated, we have decided to support it. We are dealing with the contentious issue of reversing the onus in an application for bail from the DPP to an applicant but also with the inclusion of the presumption against bail in circumstances where a serious offence has been committed by a person, that person is on bail and that person is again charged with a further serious offence.

The scrutiny of bills committee has given quite detailed consideration to this bill, and in its discussion of the bill has raised the question of whether it is appropriate to create a legislative presumption against the granting of bail where a person already on bail has been accused of another serious offence. The committee asks, "Is this a circumstance warranting special treatment, or is this step an undue trespass on the personal rights of the accused?" The rights in issue identified by the scrutiny of bills committee are the rights to liberty and the presumption of innocence.

So far as any trespass on the presumption of innocence goes, I have to say that I am prepared to be guided by Mr Justice Kirby, a judge particularly noted as a guardian of the rights of the individual. When he was president of the New South Wales Court of Appeal and considering a similar provision in the New South Wales Bail Act, he said:

I think that is a significant expression of view by Justice Kirby in relation to a similar provision in New South Wales. I think it is important to note that Justice Kirby does not believe that the refusal of bail in circumstances where a person on bail for a serious offence is later charged with another serious offence has any effect on the presumption of innocence or other features of the fairness of the trial.

In addition, in another case the High Court has said that there are countless examples of trials being conducted with perfect fairness, although an accused has not been granted bail. The impact of a bail application, whatever its outcome, on the conduct of the trial is minimal.

Both Mr Justice Kirby and the High Court obviously had in mind situations where the accused would plead not guilty and a trial would ensue. However, the persons principally affected by this change of law in the ACT, I think-and I am prepared to be advised

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